Saturday 26 November 2016

What makes a Fair Trial

A Fair Trial.

The idea that people should have a fair trial before being punished is so ingrained that even quite despicable regimes often at least stage a “show trial” to make it look as thought this requirement has been satisfied. Even Pontius Pilate who as Roman procurator had no compunction in massacring protesters wanted to know what the charges against Jesus were, gave him an opportunity to answer them and had the charge on which Jesus was condemned to die: being “King of the Jews”; affixed to the cross.

Some readers may now say: “Aha, so you admit even pre-Christian (and non-Christian) peoples had some accurate ideas on justice and due process.” Well I do! And this is my reason: Justice is part of God's unchanging moral character, he is also depicted in the Bible as “Judge of all the world” and similar titles, so “fair trial” is a reflection in human terms of his character as Judge. Us humans were created in his “image and likeness” and since God is spirit, this must mean something other than looks. We are also fallen creatures, having as a race chosen to rule the world on our own resources rather than as God's viceroys. So the upshot is that all humans may show more or less of God's character and all humans may show lack of or warped versions of God's character.

In English based jurisdictions the Greek and Roman ideals have been much refined over time. On to this base has been laid a carefully constructed edifice by godly men and women whose life's work has been the practice and development of law.

Much of their work has been the practical outworking and application to their field of expertise of a Christian and perhaps Protestant world view. The danger today is that by a combination of ignorance, the reduction of Christian influence and immigration of non-Christians bringing very different world views, Western societies are in danger of losing this treasure.

What are the basic essentials of a due process in the English system?
a) To know who is accusing you and to be able to question them; to know the details of the charge(s), and to be able to answer them.
b) for the prosecutor to set aside their own “need to win”, to release all information to the defence, especially information which would help the defence.
c) for only evidence that is actually relevant to the charge be admitted, and hearsay and gossip to be excluded
d) for the judge to be independent and impartial
e) for some avenue for an appeal

the price of freedom is eternal vigilance” as the saying goes. So too with due process. There is always temptation for it to be abused. Governments may pressure judges for political reasons. Judges themselves may decide in accordance with their own political ideas, or for all sorts of bribes rather than on the evidence. Prosecutors may be so emotionally (or say in the US career wise) involved that they cross the line, hide inconvenient evidence or the like. Lawyers will try to bring in inadmissible evidence. In every jurisdiction there are historic cases trials which have been a perversion of justice. Unless people see these for what they are and protest then standards will inevitably slide.

Cardinal Wolsey on his deathbed in 1530 is reported to have said “If I had served God as diligently as I have done the king ...” Affairs of state, from real or imagined security of the realm down to prejudices or even vindictiveness of rulers have frequently in the past and down to the present resulted in courts perverting justice.

The Bible denounces such acts as crimes of the highest magnitude. First judges are warned that they are reaching a verdict under God, not a king, president, governor or to appease a public outcry. Then there case histories – I think Ahab and Jezebel is the classic – where God's hatred of perversion of the trial process is played out in real life.

The Bible gives approval to Jehoshophat's admonition to the judges he appointed “Consider carefully what you do because you are not judging for man but for the LORD, who is with you whenever you give a verdict. Now let the fear of the LORD be upon you. Judge carefully, for with the LORD our God there is no injustice or partiality or bribery.”

King Ahab is frustrated that one of his subjects will not sell his family vineyard to him to use as a vegetable garden for the palace. Queen Jezebel, a former princess from Tyre is horrified: this is not how kings in her world act. She secretly writes to the elders of the town where this man Naboth lives instructing them to have Naboth falsely accused of blasphemy and executed. (interestingly also a modern occurrence in Moslem countries! The Christian governor of Jakarta has just been arrested on blasphemy charges ahead of an election, and in Pakistan a Christian woman has been sentenced to death for blasphemy for drinking from the same cup as Moslems). The town elders comply, and Jezebel on receiving their report tells Ahab to go and take possession of the vineyard because Naboth is dead.

God took this injustice so seriously that he sent Elijah the prophet to meet Ahab at the vineyard and deliver God's sentence on him and Jezebel. “where the dogs licked up Naboth's blood they will lick up your blood – yes yours. … (I will) cut off from Ahab every last male in Israel” and “dogs will devour Jezebel by the wall of Jezreel” These all happened, although there was a stay of execution because Ahab repented before God after Elijah confronted him. Someone famous said that although God reserves most judgement till the Day of Judgement, he gives some instances in advance as indications of what is to come. This instance – written in scripture for our instruction leaves no doubt that God really, really hates perversion of justice!

The Oxford Dictionary added a new word “Post truth” this year. It is not just in the realm of politics that truth suffers, and its not new – just more brazen. I know someone who as a barrister some decades ago changed their field of law because they were so sickened by the way so many litigants and witnesses in court lied without the slightest compunction.

False witnesses and false accusations have been around a long time – Potiphar's wife accusing Joseph of molesting her because he had rejected her advances – the false witnesses testifying against Jesus and so on. The Bible is once again absolutely clear on God's abhorrence of such things. The Biblical injunction was that false witnesses should suffer the exact punishment which would had befallen the accused person.

There is a brilliant story in the Apocrypha (Daniel, Bel & Suzanna) about this. Susanna, a virtuous married woman rejects the advances of two men who have been stalking her. In revenge they accuse her of adultery and testify that they saw her in the very act under a tree. She is condemned and about to be dragged out and stoned to death when one Daniel steps forward and demands to be allowed to cross examine the witnesses. He has one sent out and asks the other “what type of tree was it” and then sends him out, brings in the other and repeats the question. Of course without opportunity to get their stories straight they give conflicting answers. The lie is exposed, Susanna vindicated, and the two lying witnesses deservedly stoned to death.

I am not for a moment suggesting the rule of OT times should be in modern laws. However when perjury is rarely punished at all, and less and less of the population fear God's judgement on them if they lie in court, our justice system is in trouble.

Just one more item: Rules of Evidence

They have been developed over millennia (even a Roman emperor persecuting Christians ordered that anonymous denunciations were not to be accepted) to help achieve fair trials.

Humans are fallible, so even the best run trials may give the wrong verdict. One Judge Blackwood is famed for saying “I would rather release ten guilty murderers than hang one innocent man” People are right to be angry when a guilty person gets acquitted. But they often blame the rules of evidence saying things like “But if the jury had bee allowed to hear such and such piece of evidence they would have convicted ...” Possibly they would, but in another instance had they heard such and such a piece of evidence they would have convicted an innocent person! Nothing human is perfect but remember, it is God who said “Justice is mine: I will repay” the acquitted guilty person will not escape punishment! But to punish an innocent person is a great evil.



PS I have not been citing chapter and verse for scripture reference lately because with the Internet, particularly search engines like “Bible Gateway” it is simple to bring up the text on screen and then look at it in any other translations you wish. I am using the TNIV version


Saturday 12 November 2016

A Good Government Punishes Crime


Good Government Punishes Crime

Yes I know. Modernists want to cut “punishment” out of the dictionary - except of course for people who don't agree with them! They are wrong, and hypocrites at that.

It is one of those truisms that, like a pendulum, corrective measures often go too far in the other direction. In the 1800's punishments at home, in schools and worst of all in prisons were often brutal. In England writers like Charles Dickens awakened the public conscience to these cruelties. I won't labour the point since I expect nowadays the very thought of these sorts of punishments – often meted out for minor infractions - fill most people with horror.

I will claim however that we have gone too far the other way. Now we are being unkind in a quite different way by not appropriately whacking our children when they do wrong.

We are sending them undisciplined into a world where reality can be unforgiving: Drink-drive and someone dies; be rude or insubordinate and lose your job; and so on. We ban corporal punishment at schools and end up having to employ security guards to protect teachers from violent students. Not to mention unruly students blocking lessons for those who want to learn.

What I am saying is not new. Bernstein in “West Side Story” included a satirical song where the young gang members tell the policeman it is not their fault they are hoodlums: its society, its their parents, its everyone but them.

In criminal matters, there is on one hand academics and left-liberal churches advocating greater leniency on offenders and on the other in the community a widespread angst that the courts are not protecting the ordinary citizen, and are not adequately punishing criminals.

Last week there was the surprise (for some people!) result of Donald Trump as president elect of the U.S. I think this exemplifies the two camps I am talking about, and indicates a groundswell of feeling that there has not been “good government”. For any readers who would like to see an analysis of this that I believe hits the nail on the head I recommend http://www.theaustralian.com.au/news/inquirer/trump-win-breathes-fresh-life-into-globalismnationalism-debate/news-story/1dca93b3b707c59b478a2ac3fe0e5544

On the other hand, “rule of law” is infinitely better than the lynch-mob. And our ideal of “justice tempered with mercy” is infinitely better than the “Sharia courts” with their gruesome punishments and disregard for justice that we have seen in Islamic State and seen popularly demanded even in countries like Pakistan and Indonesia. So what sort of principles can we mine from the Bible?

1. Governments have a duty to God to punish wrongdoing.
Rom. 13. is the classic statement which includes secular governments. In particular v.4b “(rulers) are God's servants, agents of wrath to bring punishment on wrongdoers.” Contrary to modern theory, punishment is on the agenda as an aim in its own right!

2. Punishment without pity of some crimes is vital for a society.
Ancient Israel was a nation in a unique relationship to God as his “chosen people”. No nation today has that privilege and obligation! (God said to them : “You only have I chosen of all the families of the earth; therefore I will punish you for all your sins” ) I would be happy to concede that it applies to the Church Universal and that the governing bodies of individual denominations and congregations should take the injunctions of Deuteronomy to heart! So for instance, church officials who shielded pedophiles on one hand and theologians who denied the truths the Church has believed everywhere for the past two thousand years on the other but did not heed “show them no pity ... but expel the evildoer from your midst ... that such a thing may not be done in (your church) Israelto paraphrase a host of texts, should expect to suffer the full force of God's anger on Judgement Day.

Apostasy was something which put ancient Israel's existence at risk because of their special place in God's plans. Thus in Deuteronomy 13.8 and 19.15 (and many other places) the command that if even a loved one tries to lead one away from Yaweh : “do not yield to them or listen to them. Show them no pity. Do not spare them or shield them.  You must certainly put them to death.Please do not get me wrong! I am not suggesting liberal theologians and pastors should be stoned ! However they have destroyed the faith of many and turned many churches into mere political action groups – they should have been expelled: instead they have taken over and worked to drive out true preachers!

There are some crimes which a secular government must punish without mercy so that
Then all Israel (citizens) will hear and be afraid, and no one among you will do such an evil thing again”. As an example. In Sydney (Australia) some years ago there had been a number of viscous rapes by Lebanese gangs. The government introduced very harsh penalties for “rape in the presence of others” subsequently a group of Lebanese youths were convicted and given very long sentences. These gang rapes ceased.

The current scourge of “home grown terrorists” is another example in point
They should be considered traitors and courts should sentence them accordingly. Also there should be a strong push and community education for their families, friends and congregations to put their duty to the country way ahead of their sympathy for their co-religionists and so not shield or spare suspected terrorists in their midst but to show now pity in giving evidence against them to the proper authorities.

NEXT: DUE PROCESS in criminal trials


Sunday 6 November 2016

Law Courts

Good Government provides Civil Courts.

One cannot read far in the Old Testament without coming to the firm conclusion that justice is something very close to God's heart

Just a few texts to make the point: “I Yaweh love justice: I hate robbery and wrong”. “(God) looked for justice but saw bloodshed: for righteousness but found cries of distress;” “But you have turned justice into bitterness and cast righteousness to the ground” “But his (Samuel's) sons turned aside to dishonest gain and accepted bribes and perverted justice” (so God had them killed)

And the Mosaic Law hammers the necessity for justice at great length. Again just a few quotes: “Do not pervert justice by siding with the crowd” “Do not deny justice to the poor in their lawsuits” . “Do not pervert justice or show partiality: do not accept a bribe”. “Cursed is anyone who withholds justice from the foreigner, the fatherless or the widow.

One of my favourites is this one: “Do not pervert justice; do not show partiality to the poor or favouritism to the great” I think it speaks to the modern phenomenon of “affirmative action” which boils down to seeking to redress historic wrongs of discrimination against minorities by present day discrimination against the majority. Surely a case of “two wrongs don't make a right”. But here in scripture both wrongs are condemned as perversion of justice!

But to start, as they say, from the beginning. Good government must provide law-courts – both criminal and civil. Many of the above quotes clearly assume some sort of trial scenario – be it the elders gathered at the city gate or the king or an appointed judge. The question is not the composition of the court but its performance. It must deliver justice by God's standards.

The Bible is really clear on the necessity for civil courts, even for “the people of God”. This may come as a surprise for many modern Evangelicals who see Paul's condemnation of members of the fledgling Christian church at Corinth dragging one another before the pagan magistrates as forbidding all civil suits. But his horror can easily be explained in terms both of the shallowness of their conversion experience this behaviour displayed “you are defeated already” and what it made pagans think of The Way (Christianity). Imagine today a small Christian community in a Muslim land – would you think of taking your disputes to the local Sharia court? (This may be to harsh a comparison since Paul was well served by pagan magistrates such as Gallio, and Paup later said “King Agrippa, I consider myself fortunate to stand before you today as I make my defence ...”

Besides in the West we are still nominally Christian and our legal systems are founded on Judeo-Christian principles. They may badly need reforming. Lawyers may have subverted ideals of justice to become mere mercenaries – just without guns! But for all that in my experience, the 'secular' law courts have much higher ideals of justice than church tribunals and the like.

But on the necessity for civil courts Deuteronomy 25 commands the ancient Israelites: “When people have a dispute they are to take it to court and the judges will decide the case, acquitting the innocent and condemning the guilty.

With the astronomical cost of litigation these days, in general people would be better served listening to Jesus words (although I think he actually meant we should make peace with God before judgement day!) “Settle matters quickly with your adversary who is taking you to court, otherwise...”

However since we are talking about good government, the necessity remains for provision of civil courts to settle disputes impartially. In some places there are state tribunals where lawyers are not required and there are no “costs orders” against the losing side, which in the matters the tribunals deal with makes access viable for ordinary people.

If we look at countries like the United States, and to a slightly lesser extent Australia in the light of the verses above a reformation of the legal culture is obviously desirable. Of course if we look at many other countries they are, at least in the short term beyond redemption. A newspaper columnist here recently wrote “There is in China nothing we would recognise as the rule of law”.

As societies … We have convinced ourselves that every misadventure has to be someone else's fault: and we want to sue them. As nations we need both to learn to take responsibility for our own bad choices, and to accept that life is not fair – accidents happen.

As lawyers … we need to be … well, miraculously changed, which probably requires a deep religious conversion experience – but maybe a few can change the culture and hence the many!

1. Less litigious. The problem here is oversupply of practitioners: so less litigation = less money. 
One lawyer related to me that he told all his clients who wanted to sue someone:
“It's like this if you go to court: if you win – you lose and if you lose you are up the creek!” (“up the creek without a paddle” may be an Australian expression, but the meaning is clear.).

Not all are like that. Here there have been a spate of class actions instigated by big law firms that years after multi-million dollar settlements have given big bonuses to the partners but nothing yet to the clients. In one case there was a big settlement and the law firm said it had all been used up in its and the financier's fees!

2. See themselves as servants of the court (or “justice”) not just of their clients. That is supposed to have been the ethos in British derived jurisdictions. Now the vibe seems to be “only your client's case matters: do whatever it takes to win.”

There is probably a great deal more required in tort reform, but as in every aspect of society, it needs people who are experts in that field who have also had their consciences sharpened by a knowledge of the character of God to laboriously work out the changes.

NEXT TIME : Criminal Justice